Article 1 Purpose
These Terms (hereinafter referred to as the "Terms") set forth the terms and conditions of the Agreement (hereinafter referred to as the " Agreement") for the use of Genome Link (the Application Programming Interface service provided by AWAKENS, Inc. (hereinafter referred to as the "we," "our" or "us"), which shall hereinafter be referred to as the "API Services" including the changed service if the name or content of the service is changed).
Article 2 Definitions
Each term used herein shall be defined as follows.
- "API" means the Application Programming Interface that provides the functionality related to the linkage with the API Services.
- "API Software" means the software to utilize the API.
- "Services" means the services named "Genomelink " supplied by us (including the changed services if the name or content of the services has been changed).
- "Client" means any person who consents to the Terms and applies for registration of the API Service in accordance with the procedures provided for by us and is accepted by us In the event a corporate name is registered, all rights, obligations, and legal status under the Terms shall, in principle, belong to the corporation.
- "User" means an individual or corporation that uses or purchases services, applications or web services provided by the Client.
- "Personal Information" means information concerning a specific individual, such as a name, address, telephone number, e-mail address, that can identify the relevant individual, whether or not such information includes Confidential Information (including such information, even if the relevant individual is independently identifiable, which can identify the relevant individual by combining the information that has been collected or will be collected in the future, and is protected under applicable local and foreign laws and regulations).
- "Genomic Data" means the sequence information of DNA, which is the genetic information of humans. It is usually represented by four bases: adenine (A), thymine (T), guanine (G), and cytosine (C). In the Terms, Genomic Data represent the sequence information of an individual's DNA in digital data (e.g., ATGCGTCTAGTCATGTCA) and is clearly distinguished from the Annotation Information defined below.
- "Annotation information" means genetic trends and constitutional information that correlate with sequence differences in a particular region of Genomic Data.
- "Genomic Interpretation Information" means a generic term for trends of an individual generated according to certain criteria based on Genomic Data and Annotation Information of a particular individual. Examples include a constitutional trend to get fat. In addition, Genome Interpretation Information shall not include any Genome Data of the User.
- "Registration Information" means information provided by the Client to us when applying for the API Services, including the Client's registered Personal Information.
- "Information" means information that the Client may obtain through the API Services and includes the information in Clauses (8) and (9) of this Article.
- "User Account" means an account by which the User using the Services is authorized to access the management screen of Genomic Data and Annotation Information provided to the User through the Services.
- "Sample" means the User's saliva (2.0 ml) that is used to obtain Genomic Data through the Services.
- "Laboratory" means our partner company that performs analysis to obtain Genomic Data from Sample.
- "Confidential Information" means any and all sales, technical and other business information owned or possessed by us or the Client and may be obtained through the Agreement.
- "Related Entity" means any telecommunications carrier or other entity associated with the API Services.
- "High Load" means the load which we consider to interfere with the operation of the API Services caused by excessive access, use or other reasons by the Client or a third party.
- "DNA Collection Kit" means the test kit that is used to collect the Sample necessary to obtain Genomic Data
Article 3 Use of API Services
- The Client shall be entitled to use the API Services during the term of the Agreement in accordance with the manner set forth by us within the scope and purpose of Terms and to the extent that it does not violate the Terms. The Client shall not sublicense, lend or otherwise dispose of the API Services.
- The API Services include the services described in Exhibit 1; provided, however, that we may change or abolish the contents of all or part of the API Services from time to time.
- Client agrees that the API Services have the technical limitations set forth in Exhibit 2.
Article 4 Usage Fee
- Client shall pay the usage fee separately set forth by us for use of the API Services.
- Whereas we shall display on the application screen the usage fee payable to us and the Client shall settle the usage fee by credit card through a settlement agent. In addition, if the parties otherwise agree, payment by bank transfer in accordance with an issued invoice may also be permitted.
- If we intend to revise the usage fee for the API Services during the term of the Agreement, we shall obtain prior approval from the Client; provided, however, that if the Client does not approve such revision of the usage fee or withholds approval beyond a reasonable period of time, then we may cancel the Agreement.
- We shall not be liable for any damage suffered by Client due to the cancellation stipulated in the preceding Paragraph.
Article 5 Application and Acceptance
- The Client shall submit an application in accordance with the application form separately set forth by us after confirming the Terms, and when we notify the Client of its acceptance of such application, the Agreement shall be concluded between the Client and us pursuant to the Terms.
- In the following cases, we may not accept the Client's application.
- If the Registration Information is not authentic
- The Client has breached the Agreement in the past or is expected to breach the Agreement.
- In the event that the Client fails to provide credit card information that can be settled.
- In the event payment is not made according to the invoice
- If the Client does not agree with the Terms
- In the event that the provision of the API Services is deemed to be hindered or likely to be hindered.
Article 6 Password and client ID management
- The Client shall, at its own expense and responsibility, manage and store passwords and client IDs, and shall not allow any third party to use them, lend, transfer, sell or otherwise dispose of them.
- The Client shall be responsible for any damage due to inadequate management of passwords or client IDs, errors in use, use of third parties, etc., and we shall not be responsible for any damage whatsoever.
- If any password or client ID is stolen or found to be used by a third party, the client shall immediately notify us and follow the instructions from us.
Article 7 Condition of Usage
- The Client shall, at its own expense and responsibility, prepare and maintain any computer, software and other equipment, communication lines and other communications environments necessary for receiving the API Services.
- Client shall, at its own expense and responsibility, implement security measures, including the prevention of computer virus infection, unauthorized access, and information leakage, in accordance with the circumstances in which the API Services are used.
- Clients may use the API Services to independently provide services or create applications and websites (hereinafter collectively referred to as "Client Services"); provided, however, that the Client shall be personally responsible for the development and operation of the Client Services created by the Client, as well as for the information, advice, text, images, etc. provided by the Client Services, etc. to the User, and we shall not be responsible for the Client Services whatsoever.
- The Client shall, at its own expense and responsibility, make the Client Services applicable to the API Services or the API Software in the event that we modify the API Services or the API Software provided by us.
- The Client shall not exclusively use the API Services. In addition, we reserve the right to develop products and services that compete with the Client Services, either alone or in cooperation with a third party.
- The Client acknowledges that the API Software provided by us to use the API Services are valid during the use of the API Services or so long as we continue to provide the API Services, and that all rights associated with the API Software belong to us.
Article 8 Handling of Information
- In consideration of the fact that the Information contains Genomic Interpretation Information related to the User's Genomic Data, the Client shall adopt, at its own expense and responsibility, an authentication method that has the necessary and sufficient security strength to protect and manage the Information.
- We will not provide the User's Genomic Data to the Client through the API Services.
- Out of information regarding the User, only Genome Interpretation Information may be accessed by the client through the API software.
- Annotation Information obtained through the API Software shall be linked to the User at the Client's responsibility and provided as Genomic Interpretation Information. We shall not be responsible for any error in such linkage which may arise when establishing the Client Services.
- The Client agrees that Genome Interpretation Information originates from the User. In addition, when requested by the User, the Client shall promptly correct or delete Genome Interpretation Information linked with the User.
- The Client shall report on the status of the Client's information security system as requested by us.
- The Client shall obtain our prior written approval when entrusting the protection and management of the Information to a third party.
- In protecting and managing the Information, the Client shall comply with the applicable laws and regulations regarding the protection of personal information.
Article 9 Prohibitions
In using the API Services, the Client shall not engage in any of the following activities.
- Prohibitions on the Use of Genomic Interpretation Information for the Client Services
- Differential and inhumane behavior using Genomic Interpretation Information. This includes discriminatory treatment in job selection and life insurance assessments.
- To conduct medical treatment. If the client is not a doctor, it includes providing medical advice to the User as a medical practice.
- To share Genome Interpretation Information of the User shared by us with a third party without our prior written consent.
- Prohibitions on Infringement of Rights
- To infringe or engage in any act that may infringe copyrights, trademark rights, or other intellectual property rights, property interests, or personal interests owned or possessed by us or a third party.
- To send e-mails of advertisement or solicitation to others without permission, or to send e-mails that give or are likely to give others a feeling of hatred under generally accepted standards.
- To use the API Services by pretending to be another person.
- Prohibitions on the Contents of the Client Service
- To transmit voice, etc., equivalent to indecencies, child pornography or child abuse, or to sell media containing such information, or to transmit advertisements that remind the public of transmitting such information or selling such information.
- To transmit contents that lead to or are likely to lead to crimes such as fraud, abuse of controlled substances, child prostitution, and illicit sales of deposit accounts or mobile phones.
- To transmit violent or other cruel information.
- To induce or solicit another person to engage in self injurious behaviors or behaviors injurious to others.
- Prohibitions on Illegal Acts, etc.
- To establish or solicit a pyramid scheme.
- To directly and explicitly contract, mediate, or induce illegal acts (including illegal transfer of handguns, etc., illicit manufacture of explosives, provide of child pornography, forgery of official documents, homicide, intimidation, etc.).
- To cause an illegal gambling, or to solicit the participation thereof.
- In addition to the above, to violate any other laws, ordinances, regulations, or public order and morals.
- Prohibitions on Technical Matters
- To modify, change, revise, reverse engineer, disassemble, decompile the API Services, or to use the source code and/or software obtained from the API Services without our written approval.
- To use any and all programs that adversely affect the API Software, third party networks, servers, etc.
- Unauthorized access to the API or unauthorized rewriting or deletion of accumulated information therein.
- To take actions that place High Load on the API Services.
- To send harmful programs such as viruses.
- Other Prohibitions
- To disclose, have a third-party use, or make available to a third party the client ID and password issued by us without proper control.
- To engage in any act that is deemed to cause or likely to cause inconvenience to a third party through the use of the API Services, such as misappropriation or spam.
- Failure to comply with the instructions given by web as deemed necessary for the smooth provide of the API Services.
- In addition to the above, to engage in any act that we consider inappropriate.
In the event any claims in relation to losses, damages, liabilities, costs and expenses, (hereinafter referred to as the "Claims") are brought by a third party due to any violation of the prohibited matters stated in the preceding Paragraph or other provisions of the Terms, the Client shall settle such Claims at its own expense and responsibility, and in the event of any Claims including reasonable attorney’s fee are incurred by us, the Client shall compensate us for all damages, expenses, etc.
Article 10 Delay Compensation
If the Client fails to pay the fees referred to in Article 4, then we may charge the Client a compensation of 1.5% per month from the day following the due date to the date of full payment; provided, however, that in the event the maximum rate of interest permitted by law is less than the above, the maximum rate of interest by law shall prevail.
Article 11 Suspension of API Services
- If any of the following items applies, we may temporarily suspend the API Services without prior notice.
- Failure of the API Services due to natural disaster, power failure, or other causes not attributable to us.
- In the event the operation of the network relating to the API Services is affected by a failure, suspension or other reasons of telecommunications facilities, etc. held by the Related Entity.
- In the event we consider that the operation of facilities are likely to be significantly affected by High Load.
- When a failure, etc. has occurred in telecommunications facilities installed by us.
- In addition to the above, we may temporarily suspend the API Services by notifying the Client in advance as much as possible for the maintenance or construction of telecommunications facilities affecting the operation of the network.
- We may temporarily suspend the API Services by notifying the Client in advance as much as possible for maintenance work associated with improved security and performance or monitoring.
- If the usage fee set forth in Article 4 is not paid by the due date set by us, we may temporarily suspend the provision of the API Services to the client who did not pay.
- If an act of the Client or a third party pretending the Client by unauthorized access that we consider falls or is likely to fall under any of the Clauses of Paragraph 1 of Article 9, then we may temporarily suspend the provision of the API Services to the Client without prior notice.
- In the case of the preceding two Paragraphs, the Client shall pay the usage fee to us during the suspension period.
Article 12 Attribution of Rights
The ownership and intellectual property rights of the API Services, the Services and the Information belong to us or the person who has licensed them to us, and the license of the API Services under the Terms does not include the license of other API Services, the Services and Information not stipulated in the Terms or the intellectual property rights owned by us or the person who has licensed the API Services.
Article 13 Trademarks
Either party may use trademarks, logos, etc. held by the other party in a manner approved by the other party. In addition, we and the Client shall consult with each other about displaying "Genomelink API powered by AWAKENS, Inc." or other marks on the Client Services using the API Services.
Article 14 Handling of Registration Information
Article 15 DNA collection kit
- The Client may sell the DNA Collection Kit on its own responsibility.
- We will provide the API Services to the Client and its Users that the Users’ Genomic Data could be easily shared with us by the Users by simply purchasing the relevant DNA Collection Kit from the Client and sending back the DNA Collection Kit with the Sample to the Laboratory designated by us. By doing so, the Genomic Interpretation Information of the User will then be available on the Client Services through our API Services.
- In order for us to provide the API Services described in 2 above, the Client agrees to provide the following information to us and the Laboratory that conducts the analysis of the Sample:
- DNA Collection Kit ID and Project ID;
- The number of DNA kits purchased by the Users;
- The name of the Laboratory where the DNA kit is sent back for analysis;
- The status of the analysis of the Sample.
- In order for us to provide the API Services described in 2 above, the Client shall clearly inform the Users of the following matters upon selling the DNA Collection Kit to the User:“The analysis of the Sample will only commence if the User sends back the Sample to the designated laboratory and the User registers the DNA Collection Kit ID with the Services provided by Awakens, Inc. In addition, by agreeing to its terms and conditions upon the registration of the DNA Collection Kit ID, your Genomic Data will be uploaded to Awakens’ server and then your Genomic Interpretation Information will become available on our service through the API.”
- In addition, when the Users register the DNA Collection Kit ID with the Services, we will directly obtain the consent from the Users to commence the analysis of the Users’ Sample and to upload the Users’ Genomic Data to our servers.
- Notwithstanding the preceding Paragraph, we may invoice the Client's usage fee by reducing the remuneration under Paragraph 1 and set off the usage fee against the remuneration under Paragraph 1 in a manner to be separately provided by us.
Article 16 Termination
- If the Client falls under any of the following conditions, we may temporarily suspend the use of the API Services or terminate the Agreement with respect to the Client without prior notice or demand.
- In the event of a breach of any of the provisions in the Terms.
- In the event we determine that the Client is providing services that compete with ours
- Use or attempt to use the API Services for any purpose or in a manner that may cause damage to us, the User or other third parties.
- In the event of any interference with the provision of the API Services by any means whatsoever.
- In the event any bill or check drawn or accepted by the Client is dishonored or a disposition to suspend transactions with a clearinghouse or any other similar measure has been taken
- In the event of a petition for attachment, provisional attachment, provisional disposition, compulsory execution, or auction.
- In the event of collection of tax delinquency.
- If the API Services are not used for more than six months and there is no response to the communication from us.
- In the event we determine that the Client is inappropriate as a user of the API Services.
- We shall not be liable for any damage caused to the Client by any action taken by us under this Article.
- By giving thirty (30) days prior notice to the other party in a manner set forth by us, either party may terminate the Agreement prospectively.
- In the event the Agreement is terminated pursuant to the provisions of this Article, the Client shall delete, return, destroy or otherwise dispose of the Information, software, manuals or other items related to the API Services provided by us in accordance with our instructions.
Article 17 Warranty / Indemnification
- We make no warranties as to the accuracy, usefulness, legality, absence of defects, security, fitness for a particular purpose, absence of infringement of rights, or any other matters with respect to the API Services and the Information. In addition, we shall not be obligated to modify or improve the API Services.
- The Client shall investigate, at its own responsibility and expense, whether the use of the API Services and the Information violates any laws and regulations or the internal rules of trade associations applicable to the Client, and we do not warrant that the use of the API Services and the Information by the Client will comply with any applicable laws and regulations or the internal rules of trade associations.
- Any transactions, correspondence, disputes, etc. between the Client and the User or any other third parties in connection with the API Services, the Information or the websites, applications, and other services provided by the Client shall be handled and settled by the Client at its own responsibility, and we shall not be responsible for any such matters.
- We shall not be liable for any interruption, suspension, termination, inability to use or modification of the API Services by us, deletion or loss of the Client’s messages or information, termination of the Agreement, loss of data, failure or damage to equipment due to the use of the API Services, or any other damage suffered by the Client in connection with the API Services.
- We shall not be liable for any damage caused to the Client due to any inadequacy in the services that are associated with us.
- The Client agrees to indemnify and hold us, our affiliates, officers, directors, employees, agents, advisors, third-party partners and suppliers harmless from Claim arising out of or relating to (a) the Client’s use or misuse of the API Services or any third party product or service; (b) the Client’s violation of the Terms or the Agreement; (c) infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity; or (d) the use or disclosure of Registration Information by us; provided that the foregoing does not obligate the Client to indemnify a party whose willful misconduct or gross negligence has caused Claims. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which the Client is required to indemnify us and the Client agrees to cooperate with our defense of Claims.
Article 18 Dispute Settlement, Damages and Penalties
- The Client shall compensate us for any damage caused to us by a breach of the Terms or in connection with the use of the API Services or the Information.
- In the event that the Client receives Claims from, or is in dispute with, any User or other third parties in connection with the API Services, the Information or any web site, application or other services provided by the Client, the Client shall immediately inform us of the contents thereof and settle Claims or disputes at its responsibility and expense, and upon our request, report the progress and results thereof to us.
- In the event that we are claimed by a User or other third parties for infringement of rights or for any other reason in connection with the use of the API Services or Information by the Client or the use of the Information in the website, application or other services provided by the Client, Client shall compensate the amount that we are compelled to pay to such third party on the basis of such Claims.
- We, our affiliates, officers, directors, employees, agents, advisors, third-party partners and suppliers shall not be liable for any damage incurred by Client in connection with the API Services, Information or any web site, application or other services provided by Client. In addition, in the event that we, our affiliates, officers, directors, employees, agents, advisors, third-party partners and suppliers are liable to the Client for damages for any reason, the liability shall not exceed the last four (4) months' usage fees paid by the Client to us under the Terms (in the event a consumption tax is levied, this shall mean the amount including the consumption tax). Applicable law may not allow the limitation or exclusion of liability, so the limitation or exclusion may not apply to the Client, in which case, the liability will be limited to the extent permitted by law.
- If the Client violates the prohibited acts set forth in the Clause 2 of Paragraph 1 of Article 16, the Client shall pay to us as a penalty twice as much as the profits derived from the services competing with our services set forth in the same Clause. This Paragraph shall not preclude us from claiming the Client damages in excess of the amount of such penalty.
Article 19 Confidentiality
- Regardless of whether the Agreement is in force or after its termination, we and the Client (a recipient of information is hereinafter referred to as the "Recipient" and a discloser of information is hereinafter referred to as the "Discloser") shall not disclose the Confidential Information to any third party or use it for any purpose other than the performance of the Agreement without prior written approval from the Discloser; provided, however, that this provision shall not apply to the following items or any other cases stipulated in the Terms:
- information already in the possession or public knowledge of the Recipient at the time of disclosure or acquisition;
- information that becomes public knowledge through no fault of the Recipient after disclosure or acquisition
- information independently developed by the Recipient without reference to the information disclosed or acquired;
- information lawfully obtained by the Recipient after disclosure or acquisition without the obligation of confidentiality;
- Notwithstanding the provisions of the preceding Paragraph, in the event the Recipient is required to disclose or provide Confidential Information in accordance with applicable laws and regulations, stock exchange rules, court decisions, rulings, orders, or administrative rulings, orders, or instructions of any administrative authority, the Recipient may promptly notify the Discloser of the necessity of disclosure or provision of such Confidential Information and disclose or provide Confidential Information in such a manner as to ensure the maximum confidentiality of such information.
- The Recipient may disclose Confidential Information to its officers and employees, and to lawyers, certified public accountants, certified tax accountants, and other professionals appointed by the Recipient upon imposing confidentiality obligations equal to or greater than the obligations set forth in the Terms.
- The Client confirms that the provisions of Articles 8 and 9 of the Terms shall apply preferentially to the handling of the Information in addition to the provisions of this Article.
Article 20 Effective Period
The Agreement shall commence on the date on which the Agreement is executed and shall continue in full force and effect between us and the Client until the date on which the Agreement is terminated or the date on which the provision of the API Services is terminated.
Article 21 Change of Terms
- We may freely change the contents of the API Services and the Services.
- We shall be entitled to change the Terms. In the event of any change to the Terms, we shall notify the Client of the details of such change. Any change to the Terms by us will be effective: (i) thirty (30) days after we provide notice of such change whether such notice is provided through the API Services or otherwise; or (ii) when the Client opts-in or otherwise expressly agrees to the change of the Terms, whichever comes first.
- In the event the Client uses the API Services or fails to follow the procedure for termination of the Agreement within the period set forth by us after the notice of such change, the Client shall be deemed to have agreed to the change of the Terms.
Article 22 Non-transfer / Change of Control
- The Client shall not assign, entrust, encumber or otherwise dispose of the Agreement or any right or obligation under the Agreement to a third party without our prior written consent.
- In the event of any change in the control of the Client due to a reorganization, merger, corporate split, share transfer, stock exchange, or business transfer, etc. by the Client (hereinafter referred to as "Change of Control"), our prior written approval shall be obtained, and in the event of Change of Control without our prior written approval, we shall be entitled to terminate the Agreement without any notice.
Article 23 Communication and Notice
- In the event of any change in Registration Information including its trade name, corporate name, address, representative or other information, the Client shall notify us in advance.
- If the Client fails to notify us of any change described in the preceding Paragraph, we may treat the previously notified content of Registration Information as authentic.
- In the event notices or documents pursuant to the Agreement are delayed or fail to arrive due to a failure to notify as set forth in the preceding two Paragraphs, such notices or documents shall be deemed to have arrived at the time when they should normally have arrived.
Article 24 Costs
Except as otherwise provided in the Agreement, expenses necessary for, incidental to or r elated to the execution and performance of the Agreement shall be borne by each of the Client and us.
Article 25 Entire Agreement
The Terms supersede and replace any and all prior or contemporaneous notices, correspondence, or agreements, whether written or oral, between the Client and us, and either party shall not be bound by any terms, conditions, or other provisions that are different from those stipulated herein.
Article 26 Severability
In case any one or more provisions of the Agreement (except the provisions on payment obligations and as otherwise set forth in Paragraph 8 of Article 27) or the application thereof to any person or circumstance are held invalid or unenforceable, that shall not affect the remaining provisions of the Agreement or the application thereof to any person or circumstance other than those found to be invalid or unenforceable, notwithstanding the extent of invalidity or unenforceability, and each provision of the Agreement shall be valid and enforceable to the extent permitted by law.
Article 27 Arbitration
- This Article 27 is referred to herein as the “Arbitration Agreement. The parties agree that any and all Claims between the Client and us arising out of, relating to, or resulting from the Terms, the Agreement or the API Services be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
- Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Article 18.
- The arbitration shall be held which governs the city of San Francisco, California. If the value of the relief sought is $10,000 or less, the Client or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
- The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving a different Client, but is bound by rulings in prior arbitrations involving the Client to the extent required by applicable law.
- Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
- All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- If a court decides that any term or provision of this Arbitration Agreement other than Paragraph 2 of this Article 27 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Paragraph 2 of this Article 27 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
Article 28 Governing Law / Jurisdiction / No Waiver
- The Terms and the Agreement shall be governed by and construed in accordance with laws of the State of California, without giving effect to any principles of conflicts of law.
- The Client agrees that any action at law or in equity arising out of or relating to the Terms, the Agreement or the API Services that is not subject to arbitration under Article 26 shall be filed only in the state or federal courts in the city and county of San Francisco, California and the Client hereby consents and submits to the personal jurisdiction of such courts for the purposes of litigating any such action.
- The failure of any party at any time to require performance of any provision of the Terms or the Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of the Terms or the Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of the Terms or the Agreement.
Article 29 Good Faith Consultation
In the event of any matter not stipulated in the Terms or any doubt regarding the interpretation of the Terms or the Agreement, we and the Client shall consult with each other in good faith and determine a response.
EXHIBIT 1 CONTENT OF THE API SERVICES
- Provision of the API Software to provide the Client with the User's Genome Interpretation Information
The Client may incorporate the API Software into the Client Services developed by the Client. Through the API Software, the Client may access Genome Interpretation Information of the User using the Services, and change the contents of the Client Services in accordance with Genome Interpretation Information.
- Generation and provision of the User's Genome Interpretation Information
- We store Genome Date provided by the User in compressed, encrypted, anonymized condition.
- We generate Genome Interpretation Information based on a database of Annotation Information which was independently developed by us. Annotation Information and the intellectual property rights in the database shall belong to us.
- After acquiring the User's Genome Data who is using the Services, we will collaborate with the specified Annotation Information for the User's Genome Data to generate Genome Interpretation Information. Also, the User is informed about being granted access to Genome Data, Annotation Information, and Genome Interpretation Information in the User Account.
- The User may view their Genome Data, Annotation Information, and Genome Interpretation Information by logging in to the User Account. However, the content that can be viewed on the User Account is provided by us.
- Acquisition of the User's Genomic Data and delegation of operations
- By incorporating the API Software into the Client Services developed by the Client, the Client may sell a DNA collection kit necessary for acquiring Genomic Data in its own responsibility.
- After the purchase order is placed, the order information is automatically forwarded to us, and we follow the order information and send the DNA collection kit to the User, and the necessary information is communicated in the specified manner.
- The DNA collection kit describes how to collect the Sample necessary to obtain Genomic Data and how to return the Sample to the Laboratory. The User sends the Sample to the Laboratory as instructed.
- When registering the DNA Collection Kit ID, which is unique to each kit, with the Services, we obtain the User's consent to use the Services provided by us. The Client will also cooperate with us in obtaining the User's consent.
- After receipt of the Sample, the Laboratory performs analysis and transfers the generated Genomic Data to us in data format. Receipt of Genomic Data by us means the acquisition of Genomic Data.
- Genomic Data is stored in our server. Thereafter, the User will be informed of the authorization to access Genomic Data in the User Account and will be granted access only if the User so desires.
- Provision of support necessary to provide the above to the Client
We will support the Client to ensure that the above contents contained in the Services are properly provided. However, this does not include handling inquiries from the User concerning the Client Services.
EXHIBIT 2 TECHNICAL RESTRICTIONS
The Services may not be performed if the contents stated in the written consent between us and the User do not match the information registered on the website of the Services. In such a case, we will handle only the business related to the acquisition of Genomic Data, but the Client will take any other action related to the Client Services provided by the Client.
In acquiring Genomic Data, DNA extracted from saliva and saliva from the User will be used as the test sample (hereinafter referred to as the "Test Sample"). SNPs (single-nucleotide polymorphisms; individual variations in a single nucleotide sequence) or whole Genome Data are analyzed. Analytical techniques used to obtain Genomic Data have been developed for research and have limitations on the accuracy of testing. It is important to understand that, depending on such circumstances and the condition of the Test Sample, test results may not be obtained for some or all of the items to be tested, and that correct test results may not be provided.
Depending on advances in technologies and research related to the acquisition of Genomic Data, there is a possibility that additions or changes will be made to the analytical methods, analytical accuracy, test results, and evaluation of results.
Annotation information is based on articles published in the Medline, a literature database related to medicine and life sciences, and extracted in terms that they have been peer-reviewed by experts in the same field and that research has been conducted based on statistical methods. However, we may not guarantee the accuracy.
Only Annotation Information provided in the Services does not enable the diagnosis of health or illness. Medical diagnosis shall be made at a medical institution in accordance with relevant laws.
The Services are not a medical practice. The information provided by the Services does not substitute for or supplement medical diagnosis by a doctor. Please follow the instructions of a doctor or other specialists.
The Services does not include forensic examinations (e.g., parent-child and blood-related examinations) or tests for hereditary diseases (e.g., single-gene disorders and familial tumors).
Because the Services preferentially uses the results of studies and published articles for Caucasian and Japanese or other East Asian populations, customers who do not belong to these categories may not have appropriate test results.
Depending on advances in technologies and research relating to the provision of Annotation Information, there may be additions or changes to the analytical methods, analytical accuracy, test results, and evaluation of results. In the Services, if we deem it necessary, for example, when there is a change in the evaluation of test results as research progresses, we plan to update the test results; provided, however, that the updated test results shall be provided only to customers who satisfy the requirements for owning communication environments and devices (e.g., PCs) separately set forth by us.